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Typical Court Process For An Indictable Criminal Charge

Video Transcript

I’m really glad you could join me today. I have an interesting topic today to discuss with you. I want to talk about the typical court process for an indictable criminal charge. Think of an indictable criminal charge as a serious criminal matter such as a murder case, sexual assault involving a rape, aggravated assault – these types of very serious criminal charges where the crown elects by indictment. So what happens, you’re placed under arrest and you’re probably given a court date by the police officer three, four, five, six weeks from that date of arrest. In the meantime you’ve retained a lawyer and the lawyer will go to court for you on that first appearance. Now, typically in the province, the crown attorney is expected to get you at least some degree of disclosure read by the the first court appearance – typically it’s handed to your lawyer at the first appearance. Often, there’s missing disclosure and there’s gonna be need to be further remand. You’re in the intake or remand court in front of a justice of the peace. Now, this process can go on for several months in intake court where you’re having discussions with your lawyer. You’re reviewing disclosure. Your lawyer’s getting a feel for the case, giving you an opinion, meeting with the crown, etc. etc. depending on the complexity of the case, you know, it could go on 3-4 months or even longer in in some cases but, you know, maybe the average case, say a sexual assault/rape case three, four, five months in that remand stage maybe five months is pushing it a little bit. At the end of that process, you’re expected to have all the discussions your lawyer needs to have with the crown lawyer and yourself and [you need to] fully instruct your lawyer about what you want to do, for example, you might decide to plead guilty [if you] hear the crown’s case is strong against you and you could plead guilty at any time within that remand period, maybe even two months in if you want. Your lawyer negotiates the best result possible deal with the crown and then appears in front of a judge and you plead guilty. Maybe there’s a joint submission, maybe there’s open submissions and your lawyer tries to get the best result possible and that’s the end of the case. Shorten your jail term as much as possible, for example within the range of appropriate sentences, but let’s talk about a situation where, you know, you’ve told your lawyer you’re innocent. Well, now you want a trial so with an indictable case, for example, a sexual assault, you have a right to be tried at the Ontario Court of Justice or you could be tried in the Superior court of justice with a preliminary hearing, judge alone or judge and jury so let’s pretend you decide to elect in the Ontario Court of Justice so that at the end of that intake period, remember that two, three, four months period up to five (which might be pushing it because the courts expect you to move things along as defense counsel) but sometimes disclosure is not forthcoming, sometimes, just missing disclosure and it requires further time for the learner to analyze the file. So now you’re expected to have what’s called a judicial pre-trial which is a fancy term for a meeting with the judge. Know that meeting takes place between the crown assigned to your case typically and the defense lawyer and a judge and it’s to effectively try to manage court time, discuss all the issues in the case, what are the legal issues, what witnesses are being called by the crown, what are the estimates of court time? Are there pre-trial applications? A very fulsome discussion that the judge guides and mediates and gives directions. Once we’ve had that judicial pretrial now, we’re in a position to set the trial date, so we’re already, you know, three, four or five months in and in the typical county in the Ontario Court of Justice in Ontario, you’re not going to get a trial date for a long time. The counties are clogged, the system’s clogged. There’s delay as if [for example] you’re in Brampton, the delays are very significant and in smaller counties that may not be but the bottom line is this: on the date you go to set your court date, you’re gonna be given trial dates and [for] the sexual assault matters usually multiple trial dates ,oh, depending on the county anywhere from four to six, to eight, to ten, to twelve months down the road, you know, if you’re in Brampton or one of these more delayed counties. It’s important to bear in mind that you have a right to a trial within a reasonable time period under under the Canadian Charter of Rights and Freedoms under Section 11B and those timelines have been dictated by a recent case in the Supreme Court of Canada called Jordan. So 18 months, if things are pushed beyond the 18 months, you may be able to get your case stayed for delay. Now the province has put a lot of resources into getting cases under the 18 month limit. Now, if that delay is caused by defense council’s actions, of course, then that 18 months doesn’t count but so the courts are very cognizant of that and they’re trying to get your case on as quickly as possible. But typically, you know, the average sexual assault matter and Ontario court of justice I’m doing, I’d be surprised if your your case was completed within 12 months, 15 in a lesser county maybe it’s gonna be over an eight or ten, nine, or ten months so there’s one situation you’ve left an Ontario Court of Justice but what if you left the Superior Court whether it’s a jury or judge alone. In this situation, you have a very important right called a preliminary hearing which I often recommend by the way that clients who are charged with an indictable offence go to a preliminary hearing. A preliminary hearing is an opportunity for you to test the crown’s case. The crown has to call enough evidence to satisfy a judge that there’s some evidence upon which a jury or a judge recently instructed could convict. It’s a very low level test but that’s not the important issue here. The important issue is you’re gonna get to cross- examine and the complainant and perhaps other witnesses before the trial months and months before the trial. It’s a very important right because now you can get a transcript you can pin the complainant down, pin the police officers down, setup your strategy for trial and get a transcript of that so you can use that at the trial to confront them with the inconsistencies, to strategize, to show improbabilities. It’s a very important right and I often recommend that so going back to that two or three, four month period what happens is you go through the same judicial pretrial, you then set a preliminary hearing date, maybe one or more days, the crown calls enough evidence to get past that screening function where they at least have enough evidence to go to trial and you cross-examine as defense counsel cross-examine witnesses so it’s the same timeline. Remember the timeline I meant before, you know, depending on branch or other county so you’re gonna be sitting in the Ontario Court of Justice maybe eight, ten, twelve, fourteen, fifteen months. So let’s pretend you get committed to trial and it’s very rare, by the way, for you to win outright at a preliminary hearing because it’s such a low level test. Some is there some evidence and yet the judge does not examine the credibility of the complainant, the the judge at the preliminary hearing may even think the complainant is completely lying as an example as long as they say magic words that are, you know, enough to commit you to trial, for example, yes he sexually assault me as long as they say those words, you’re gonna get committed to trial. Now, at that stage if it’s a weak case, if the crown feels that they have a weak case, maybe you’re gonna get an offer from the crown for a peace bond. Maybe, for example, the complainant just didn’t sound credible at all so that’s a negotiation time period with the crown. That you’re going to want to meet with the crown. See if there’s a way to resolve the case without a criminal charge but let’s assume the crown feels they have a case to present and legitimately they do. The complainants sounded credible and reliable on the witness stand, for example. Now, you go into the Superior Court of justice which is a higher court one up from the Ontario Court of Justice and you start the same remand process again. You go into Superior Court of Justice assignment court it’s called and there might be a few appearances there. Eventually you’re gotta go through the same judicial pre-trial process as you did in the lower court again with the judge. All the legal issues discuss court time management because the course really want to manage court time. They want accurate estimates and everyone has to put their head together at that judicial pretrial to get well look how long is this trial going to take. If it’s a jury trial maybe it’s going to take two weeks if it’s a judge alone Superior Court trial, well, it’s going to take five days. We’re trying to get accurate estimates of court times are the pretrial applications to bring where we have to file motions, applications to throw in evidence maybe the crown wants to introduce evidence it’s fought out before the trial. After that judicial pretrial now in the Superior Court, we’re in a position to set the trial date, again, that’s gonna be you, you know, four, six, eight, ten, twelve, fifteen months down the road. Hopefully, twelve because fifteen starts pushing it for delay issues so then you go to your trial and you’re gonna strategize with your lawyer, your lawyer’s gonna prepare to cross- examine the case, prepare you to testify and try and create reasonable doubt so that you can win your case in court. If you’re found guilty by the judge or jury then, of course, you go to the sentencing phase and the the lawyer’s job is to hopefully minimize your sentence as much as possible within the accepted range in Canada so there you have it. There’s the, you know, in a the nutshell, the typical indictable court process from start and finish and when you add all these time periods up, well you know, you could be in a system two and a half years, you know, there’s a Jordan delay case from the Supreme Court of Canada that says the maximum time should be thirty months. Those periods of time (as long as it’s not sometimes the defense causing the delay so you don’t count those periods) but if you could move beyond a thirty month period and show that it was institutional delay caused by the court, the court wasn’t ready to process your case, the crown wasn’t ready then Jordan says your case should be stayed in the proper case but each case is different and needs to be analyzed but it would be very surprising to me to wrap up a Superior Court jury trial or judge alone trial in less than two years for example if you have a preliminary hearing so that that’s it. That’s the video tip of the day on the typical indictable court process in Canada.

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